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Authors

Kevin P. Sack

Abstract

Class arbitration is a tricky process to navigate as it introduces more parties, higher stakes, and more procedures than typical bilateral arbitration. Because class arbitration is more complex, the determination as to whether an arbitration agreement authorizes class arbitration (class arbitrability) is an important one, and the entity that makes the class determination should be knowledgeable about class procedures in order to be suited to make such an important finding. In Reed Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, the Sixth Circuit held that the determination of class arbitrability should be presumptively reserved to judicial courts, not arbitrators, unless the arbitration agreement expressly provides otherwise. This Note discusses the circuit split that arose following the Sixth Circuit's holding in Reed Elsevier, and then explores the precedential value of United States Supreme Court plurality opinions. In conclusion, this note argues that Reed Elsevier highlights the jurisprudence of recent Supreme Court cases; together, these cases indicate a shift away from Bazzle3 and are more persuasive than any single plurality opinion.

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